Filed 12/9/19 P. v. Xiong CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

VINAI XIONG,

Defendant and Appellant.

C083213

(Super. Ct. No. 16FE013498)

Defendant Vinai Xiong pled no contest to accessory after the fact to the crime of unlawful cultivation of marijuana and received a stipulated disposition of five years’ formal probation. On appeal, he contends an electronics search condition is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent), is overbroad, and violates his Fifth Amendment rights. He further contends a condition prohibiting the possession of dangerous or deadly weapons is invalid under Lent. In supplemental briefing, defendant claims that pursuant to the holding in People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168, 1172, the portion of the trial court order directing defendant to pay a $300 restitution fine, a $40 court operations assessment, and a $30 criminal conviction assessment should be stayed pending a hearing on his ability to pay.

We find the electronics search condition is invalid under a recent decision of the California Supreme Court (In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.)), but the weapons condition is not. We shall strike the former condition and remand on defendant’s ability to pay the restitution fine and the two assessments.

BACKGROUND

We take the facts of defendant’s crime from the factual basis of his plea. Around July 12, 2016, defendant assisted a principal in the commission of a felony violation of Health and Safety Code section 11358, the unlawful cultivation of marijuana.

Defendant waived preparation of a probation report and was sentenced on the day of his plea.

The defense made written and oral objections to the proposed probation condition number 8, which reads as follows:

“Defendant shall submit his/her person, place, property, automobile, electronic storage devices, and any object under his/her control, including but not limited to cell phones and computers, to search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his/her presence or further consent.

“Defendant being advised of his/her constitutional and statutory rights pursuant to Penal Code section 1546 et seq. in this regard, and having accepted probation, is deemed to have waived same and also specifically consented to searches of his/her electronic storage devices.

“Defendant shall provide access to any electronic storage devices and data contained therein, including disclosing and providing any and all information necessary to conduct a search.”

The defense asserted the condition was invalid under Lent, a violation of the Electronic Communications Privacy Act and the wiretap statute (Pen. Code, § 631), unconstitutionally overbroad, and violated the Fifth Amendment self-incrimination privilege.

The prosecution filed a motion supporting the condition. Attached to it was a generic declaration from Sean E. Smith, a detective with the Sacramento County Sheriff’s Department. The declaration cited Smith’s training and experience, which included training in and experience investigating cybercrimes and computer and electronic device forensics. The declaration also contained assertions regarding examples of electronic evidence found in investigations of various types of crimes and the need to examine electronic devices. Detective Smith asserted that people engaged in drug sales/transportation offenses often kept pay/owe sheets on electronic devices, and may take digital photographs of drugs, coconspirators, or manufacturing locations and store them digitally on electronic devices. Traffickers and transporters of illegal drugs also posted various media relating to their illegal activities on social media, and cellular phones may contain data that can reveal relevant geographical information. The declaration did not directly address the offense of accessory after the fact or the facts of this case.

Defendant also made an oral objection at sentencing to condition number 6: “Defendant shall not knowingly own or possess any dangerous or deadly weapon.”

The trial court imposed both conditions without modification.

DISCUSSION

I

The Electronic Search Condition

Defendant contends the condition is invalid under Lent, overbroad, and violates his Fifth Amendment rights. We agree with the first contention and decline to address the others.

“The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof.” (Lent, supra, 15 Cal.3d at p. 486.) Consequently, we review conditions of probation for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) “A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.’ ” (Lent, at p. 486.) The Lent “test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.” (Olguin, at pp. 379-380.)

Ricardo P. involved a minor who was placed on probation after admitting to two counts of burglary; one condition of probation was that he “submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices.” (Ricardo P., supra, 7 Cal.5th at p. 1115.) While the minor did not use electronic devices in committing the burglaries, the juvenile court “imposed the condition in order to monitor his compliance with separate conditions prohibiting him from using or possessing illegal drugs.” (Ibid.) The Court of Appeal found the condition permissible under Lent because it was reasonably related to enhancing the minor’s supervision while on probation, but also found it was unconstitutionally overbroad. (Ricardo P., at p. 1116.) The Supreme Court found the condition invalid under Lent. (Ibid.)

The Supreme Court agreed with the Court of Appeal the first two parts of the Lent test were met here; review was granted to determine “whether the electronics search condition satisfies Lent’s third prong — that is, whether it ‘ “requires or forbids conduct which is not reasonably related to future criminality.” ’ ” (Ricardo P., supra, 7 Cal.5th at p. 1119.) The Supreme Court found the condition satisfies Lent’s third prong and is therefore invalid under the Lent test because, “on the record before us, the burden it imposes on Ricardo’s privacy is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society.” (Ibid.)

According to the Supreme Court, by requiring a reasonable relationship between the condition and future criminality, Lent “contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” (Ricardo P., supra, 7 Cal.5th at p. 1122.) The condition significantly burdened the minor’s privacy interests, given how much sensitive and confidential information can be accessed on devices like cell phones. (Id. at p. 1123.) The record did not support such a significant burden on the minor’s privacy. The only rationale provided by the trial court was evidence that the minor previously used marijuana and its observation that minors often brag about using marijuana or other drugs by posting online pictures of themselves with drugs or paraphernalia. (Id. at p. 1122.) “If we were to find this record sufficient to sustain the probation condition at issue, it is difficult to conceive of any case in which a comparable condition could not be imposed, especially given the constant and pervasive use of electronic devices and social media by juveniles today. In virtually every case, one could hypothesize that monitoring a probationer’s electronic devices and social media might deter or prevent future criminal conduct. For example, an electronics search condition could be imposed on a defendant convicted of carrying an unregistered concealed weapon on the ground that text messages, e-mails, or online photos could reveal evidence that the defendant possesses contraband or is participating in a gang. [Citation.] Indeed, whatever crime a juvenile might have committed, it could be said that juveniles may use electronic devices and social media to mention or brag about their illicit activities.” (Id. at p. 1123.)

The Court of Appeal’s rationale fared no better. It relied on Olguin, which upheld a requirement that the probationer notify the probation officer about pets at his residence as enabling the officer to supervise the defendant, which was reasonably related to the probationer’s future criminality. (Ricardo P., supra, 7 Cal.5th at p. 1124; see Olguin, supra, 45 Cal.4th at pp. 380-382.) “Compared to the minimally invasive pet notification requirement in Olguin, requiring a probationer to surrender electronic devices and passwords to search at any time is far more burdensome and intrusive, and requires a correspondingly substantial and particularized justification.” (Ricardo P., at p. 1126.)

Such was not present in the case before the Supreme Court. “In sum, we hold that the electronics search condition here is not reasonably related to future criminality and is therefore invalid under Lent. Our holding does not categorically invalidate electronics search conditions. In certain cases, the probationer’s offense or personal history may provide the juvenile court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality.” (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.)

Ricardo P. controls. The record does not demonstrate that defendant’s crime involved the use of any electronic devices, and the use of such devices is not illegal. As in Ricardo P., the electronic search provisions of the search condition are invalid under Lent’s third prong. There is no evidence defendant used a computer, cell phone, or similar electronic devices in any way related to his offenses. Defendant was sentenced on the day of the plea and there is no probation report, so there is no evidence of him using such devices in prior criminal acts. Assuming the sworn declaration from Detective Smith could be considered expert testimony upon which a court could base findings supporting the condition, it does not support a condition as applied to the facts of this case. The declaration does not tie Detective Smith’s observations to any particular facts about defendant or his crime, being instead generic testimony about types of crimes, the nature of electronic devices, and the utility of evidence procured from them in other cases. The Supreme Court’s rejection of the trial court’s observations regarding minors posting their drug use online demonstrates that generic evidence like this generally will not support finding an electronics search condition valid under Lent’s third prong. Given the heavy burden an electronics search condition imposes on the probationer’s privacy interests, the evidence supporting a finding under Lent’s third prong must be related directly to the defendant or his crime or his personal history rather than the type of generic evidence presented here. Just as in Ricardo P., given the prevalence of electronic devices and their widespread use in communication, the type of generic evidence presented through Detective Smith’s statement would justify imposition of an electronic search in virtually every case. That is not allowed under Ricardo P.

Since there is no evidence supporting a finding that the electronics search condition is reasonably related to defendant’s future criminality, it is invalid under Lent and Ricardo P. and must be stricken.

II

The Dangerous Or Deadly Weapons Provision

Defendant also contends the condition prohibiting the possession of dangerous or deadly weapons is invalid under Lent. We disagree.

Possession of a deadly or dangerous weapon is not per se criminal conduct. (In re R.P. (2009) 176 Cal.App.4th 562, 565, 569; In re Martinez (1978) 86 Cal.App.3d 577, 581 (Martinez).) In Martinez, the defendant pled guilty to battery on a police officer, a misdemeanor offense, after he threw a beer bottle at a police car. (Martinez, at pp. 578-579.) The trial court imposed a probation condition that the “defendant not possess any dangerous or deadly weapon” and that he submit to warrantless searches. (Id. at p. 579.) On habeas review, the defendant challenged only the warrantless search condition. (Ibid.) The reviewing court nonetheless began by analyzing the reasonableness of the weapons condition because the People argued that “whenever a condition prohibiting possession of concealable weapons can be reasonably imposed, a ‘search’ condition may also reasonably be imposed.” (Id. at p. 581.)

The Court of Appeal rejected the notion that the conditions could be justified simply because prohibiting weapons and searching all probationers “could abstractly be related to preventing future crime.” (Martinez, supra, 86 Cal.App.3d at p. 583.) The court observed: “[T]he propensities of the individual defendant as manifested by the present offense and past behavior, may justify such a condition in order to deter future criminality. [¶] Given the inordinately large role which weapons play in the high incidence of violent crime that our society is experiencing, it could be argued that imposing such a condition on anyone who suffers a criminal conviction for any offense would go a long way in preventing future crimes. Such an approach, however, would be unreasonable and would result in denying to a large group of nonviolent persons the right to own or possess weapons for any reason.” (Id. at pp. 581-582.) Rather, “[t]here must be a factual ‘nexus’ between the crime, [the] defendant’s manifested propensities, and the probation condition. [Citations.] There must be some rational factual basis for projecting the possibility that defendant may commit a particular type of crime in the future, in order for such projection to serve as a basis for a particular condition of probation.” (Id. at p. 583.) Because “nothing in the defendant’s past history or in the circumstances of the offense indicate a propensity on the part of the defendant to resort to the use of concealed weapons in the future,” the warrantless search condition was deemed unreasonable. (Id. at pp. 583-584.)

Martinez was decided before Olguin. In finding the pet notification valid under Lent, the Supreme Court stated, “the protection of the probation officer while performing supervisory duties is reasonably related to the rehabilitation of a probationer for the purpose of deterring future criminality.” (Olguin, supra, 45 Cal.4th at p. 381.) As previously noted, the Supreme Court distinguished Olguin in Ricardo P. as it involved a much less invasive condition than the one in Ricardo P. It did not overrule Olguin regarding ensuring officer safety to aid in the probationer’s supervision as a valid justification under Lent’s third prong.

As a felon, defendant is already prohibited from possessing dangerous or deadly weapons such as firearms or ammunition. (§§ 29800, 30305.) Furthermore, California law generally prohibits possession of many other types of weapons such as concealed dirks or daggers or metal knuckles. (§ 16590.) Given the substantially diminished interest in possessing dangerous or deadly weapons in comparison to the interests invoked by electronics search conditions, we find Ricardo P. distinguished with respect to this probation condition. Prohibiting defendant from possessing dangerous or deadly weapons will make it safer for officers to supervise defendant. Applying Olguin, we find the condition valid under Lent’s third prong.

III

Fines And Fees

At sentencing, the trial court imposed without objection a $300 restitution fine (§ 1202.4, subd. (b)), a $40 court security fee (§ 1465.8), and a $30 criminal conviction fee (Gov. Code, § 70373).

Citing Dueñas, defendant contends these fines and fees should be stayed until the trial court holds a hearing on his ability to pay. The People counter that defendant forfeited this appellate contention because he failed to raise it in the trial court. However, as the court explained in People v. Castellano (2019) 33 Cal.App.5th 485, the statutes authorizing imposition of the challenged fine and assessments did not reference consideration of ability to pay, and in fact, section 1202.4, subdivision (c) precluded such consideration. (Castellano, at p. 489.) The court explained that when, as here, the defendant’s challenge is based on a newly announced constitutional principle, reviewing courts have declined to find forfeiture. (But see People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154 [Dueñas claim forfeited where trial court increased restitution fine above the minimum].) We decline to find forfeiture here, where the trial court imposed the minimum restitution fine and Dueñas was decided after sentencing in this case. Because defendant’s conviction and sentence are not yet final, a limited remand under Dueñas is appropriate to permit a hearing on defendant’s ability to pay. (See Castellano, at pp. 490-491.)

DISPOSITION

The trial court is directed to issue an amended probation order striking the electronics search condition. The matter is remanded to permit a hearing on defendant’s ability to pay the restitution fine, court security fee, and criminal conviction fee. In all other respects, the judgment is affirmed.

/s/

ROBIE, J.

I concur:

/s/

BLEASE, Acting P. J.

Murray, J., Concurring and Dissenting.

I concur in the majority opinion except for Discussion part III. To that part, I respectfully dissent. Defendant is not entitled to an ability to pay hearing. (People v. Kingston (2019) ___ Cal.App.5th ___, ___ , 2019 WL ___, People v. Hicks (2019) 40 Cal.App.5th 320; People v. Aviles (2019) 39 Cal.App.5th 1055; People v. Caceres (2019) 39 Cal.App.5th 917, 923-929.)

_/s/_____________________

MURRAY, J.